COLIN STEWART and REPATRIATION COMMISSION

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 641

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0103

VETERANS' APPEALS  DIVISION		)
Re		COLIN STEWART

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date27 August 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

................[Sgd]..............................

Senior Member

(b)       a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

ISSUES

16.     I have to determine whether the circumstances of the veteran satisfy the SoP for Anxiety Disorder (Instrument No 101 of 2007) and the SoP for Alcohol Dependence/Abuse (Instrument No 1 of 2009). The veteran also has an accrued right to have his application considered under an earlier SoP for Alcohol Dependence/Abuse (Instrument No 17 of 2008).

MEDICAL EVIDENCE

17.     There are a number of reports from psychiatrists, which are in evidence before me.

18.     On 3 May 2005, Dr Tom Hogan, psychiatrist, gave a report in which he diagnosed the veteran as suffering from generalised anxiety disorder, alcohol dependence and abuse and posttraumatic stress disorder in remission.  The report does not contain any discussion of any relevant stressors.

19.     Dr Bruce Lawford, psychiatrist, on 20 June 2008 diagnosed the veteran, who was then working, as suffering from generalised anxiety disorder and alcohol dependence and abuse.  Dr Lawford considered that a number of stressors caused those disorders: marital disharmony due to sea duties; a family member’s deterioration in health; and a heavy workload.

20.     Dr Lawford, who saw Dr Hogan’s report, expressed the opinion in his own report that the veteran had never suffered from posttraumatic stress disorder because he never developed sufficient stressors to develop such a condition.

DIAGNOSIS

21.     Initially, I have to determine the appropriate diagnosis of the veteran’s condition.  There is uncontradicted evidence from two psychiatrists that the veteran is suffering from generalised anxiety disorder and alcohol dependence/abuse.  I find that the veteran is suffering from those conditions.

CONSIDERATION

22. Having made a diagnosis of the veteran’s conditions and ascertained that an SoP is in force in relation to them, it is now appropriate for me to apply the test prescribed by s 120A(3) of the Act. In doing so, it is useful to refer to the four steps expounded in Repatriation Commission v Deledio.[4]  Neither a substitute for the statute nor an algorithm, the four Deledio steps are still helpful in navigating the statutory requirements.[5]  The four Deledio steps are as follows:

1 The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2 If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11) …

3 If an SoP is in…